Blake
A. Hewitt and John S. Nichols, both of Bluestein, Nichols, Thompson and
Delgado, of Columbia, for Appellant.

Attorney
General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, and Assistant
Attorney General Ashley A. McMahan, all of Columbia, for Respondent.

JUSTICE PLEICONES: After
a bench trial, appellant was convicted of possession of a firearm during the
commission of the crime of trafficking in marijuana. On appeal, he contends
that the trial court erroneously convicted him without finding that a nexus
existed between his possession of firearms and his drug trafficking. While we agree
that a nexus between the possession of the firearm and the underlying violent
crime must be established, we find that the trial judge made a factual finding
that such a nexus existed in this case and that the finding was supported by
evidence in the record. We therefore affirm.

FACTS

In December 2007, appellant was arrested in the
parking lot outside his apartment after authorities received information
identifying him as a marijuana dealer. After appellant’s arrest, law
enforcement personnel recovered marijuana from his person; a pistol from the
door panel of his car; marijuana in jars and bags, scales, smoking pipes, and
other drug paraphernalia from his apartment; and approximately twenty pounds of
marijuana and a .357 caliber pistol along with a few other items from a safe appellant
owned. Appellant pleaded guilty to two marijuana trafficking charges. After a
bench trial at which the statements of several witnesses were admitted into the
record, he was found guilty of possession of a firearm during commission of a
violent crime in violation of S.C. Code Ann. § 16-23-490(A) (2003). This
appeal followed.

ISSUES

1. Does the
crime of possession of a firearm during the commission of a violent crime
require proof of a nexus between possession of the firearm and the violent
crime?

2. Was such a
nexus established in this case?

DISCUSSION

Appellant contends that the crime of possession of a
firearm during the commission of a violent crime requires proof of a nexus
between the possession and the violent crime, so that mere proof of
constructive possession of a firearm is insufficient to support a conviction. We
agree, and hold that the State must prove a nexus between the predicate offense
and the defendant’s actual or constructive possession of a firearm during its
commission.

Section 16-23-490(A) imposes a penalty, in addition to
the penalty for the underlying offense, on those convicted of possessing a
firearm during the commission of a violent crime. It provides, in pertinent
part:

(A) If a
person is in possession of a firearm or visibly displays what appears to be a
firearm or visibly displays a knife during the commission of a violent crime
and is convicted of committing or attempting to commit a violent crime as defined
in Section 16-1-60,[1] he must be imprisoned five years, in addition to the punishment provided for
the principal crime.

Appellant argues, and we agree, that the statute must
be interpreted as requiring a nexus between the underlying violent crime and
the possession of a firearm.

“In the interpretation of statutes, our sole function
is to determine and, within constitutional limits, give effect to the intent of
the legislature, with reference to the meaning of the language used and the
subject matter and purpose of the statute.” State v. Ramsey, 311 S.C.
555, 561, 430 S.E.2d 511, 515 (1993). The words of the statute must be given
their ordinary meaning unless something in the statute indicates that the
legislature intended a different meaning. Mid-State Auto Auction of
Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996).
“In interpreting a statute, the language of the statute must be read in a sense
that harmonizes with its subject matter and accords with its general purpose.” Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 342, 713 S.E.2d 278, 283
(2011).

The subject matter and general purpose of the statute lead
us to conclude that the General Assembly intended to penalize possession of a
firearm only when possession furthers or is intended to further a violent
crime. The statute punishes the visible display of a knife or an object that
appears to be a firearm during the commission of a violent crime. Visibly
displaying a knife or an object that appears to be a firearm furthers the
criminal’s objectives by increasing the cost of resistance or interference. Thus,
a nexus is inherent in this prohibited conduct.

The statute also criminalizes the possession[2] of a firearm during the commission of a violent crime even if not visibly
displayed. Because a firearm has greater power to inflict harm, its mere
presence at the scene of the crime is a greater threat than that of a knife or
an object that appears to be a firearm. Thus, the General Assembly determined
that merely possessing a firearm in furtherance of a violent crime warrants a
penalty.

However, the fact that the General Assembly sought to
deter even the possession of a firearm in connection with a violent crime does
not suggest that it intended to criminalize any possession of a firearm, no
matter how unrelated, during the commission of a violent offense.[3]
The General Assembly’s evident purpose was to increase the penalty of engaging
in more dangerous conduct, whether that conduct is displaying a knife, firearm,
or object that appears to be a firearm or possessing a firearm in furtherance
of a violent offense. The General Assembly’s purpose would not be furthered by
penalizing possession of a firearm that is entirely unrelated to the violent
offense. Indeed, finding that no nexus is required may raise constitutional
questions in some cases, since the Second Amendment protects the possession of
lawful firearms by ordinary citizens. SeeDistrict of Columbia v.
Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 3025
(2010). We have no reason to suppose that the General Assembly intended to
create constitutional questions, and our interpretation of the statute avoids
them. Ramsey, supra.

In sum, we find that the General Assembly’s purpose in
enacting this statute was to penalize defendants who actually or constructively
possess a firearm in order to further a violent crime and who thereby increase
the attendant risk of harm. We therefore hold that such a nexus must be
established in order to convict a defendant for possessing a firearm during the
commission of a violent crime. Other courts have arrived at the same
conclusion when they have interpreted similar statutes. SeeArizona
v. Petrak, 198 Ariz. 260, 264, 266, 8 P.3d 1174, 1178, 1180 (Ariz. Ct. App.
2000); Wright v. Virginia, 53 Va. App. 266, 280, 282, 284, 670 S.E.2d
772, 779-81 (Va. Ct. App. 2009); see alsoLouisiana v. Blanchard,
776 So.2d 1165, 1171 (La. 2001); Collins v. Alaska, 977 P.2d 741, 753 (Alaska
Ct. App. 1999) (Mannheimer, J., concurring in opinion adopted by majority).

A nexus may be established by showing that the firearm
furthered, advanced, or helped in the commission of the crime. SeeWright,
53 Va. App. at 283, 670 S.E.2d at 780. A nexus between possession of a firearm
and drug trafficking would exist if the firearm is accessible to the trafficker
and thereby “provides defense against anyone who may attempt to rob the
trafficker of his drugs or drug profits.” Similarly, “possessing a gun, and
letting everyone know that you are armed, lessens the chances that a robbery
will even be attempted.” Id. at 283, 670 S.E.2d at 780 (quoting United
States v. Ceballos-Torres, 218 F.3d 409, 412 (5th Cir. 2000)).

Appellant pleaded guilty to two charges of trafficking
in marijuana. At the conclusion of a bench trial on the charge of possession
of a firearm during the commission of a violent crime, the judge found him
guilty. The trial judge interpreted section 16-23-490(A) as not requiring the
showing of a nexus and found appellant guilty based upon his finding that
appellant constructively possessed the firearms that were located in his car
and safe during the commission of his trafficking offenses.

Appellant argues that this naked finding was
insufficient to support a conviction because it failed to establish a nexus,
and we agree. However, these were not the judge’s only findings. The judge
also found a sufficient nexus from evidence that appellant ordinarily carried a
pistol for the purpose of letting others know that he was armed while dealing
drugs. Appellant argues that this finding was not supported by the evidence in
the record. When a defendant is tried without a jury, the judge’s findings of
fact are entitled to the same deference as a jury’s findings of fact and will
not be disturbed unless no evidence reasonably supports them. State v. Hill,
286 S.C. 283, 284, 333 S.E.2d 789, 790 (Ct. App. 1985). The trial court’s
finding was based on a witness’s statement that was admitted into evidence.
Thus, evidence in the record supports the judge’s finding that a nexus was
established in this case. We find no error.

CONCLUSION

A nexus between possession of the firearm and the
underlying violent crime must be established in order for a defendant to be
convicted of possession of a firearm during the commission of a violent crime.
In this case, the trial judge found that a nexus existed. His factual findings
are entitled to great deference and are based upon competent evidence in the
record. We therefore AFFIRM.

[2] The element of possession required under the statute is unaffected by our
holding today. We have held that the term “possession” embraces actual or
constructive possession. State v. Halyard, 274 S.C. 397, 400, 264
S.E.2d 841, 842 (1980). In Halyard, this Court held that the appellant
was not entitled to a directed verdict on a charge of possessing a firearm
during the commission of a violent crime despite the fact that all of the
eyewitnesses to the robbery testified that the appellant was not the person
carrying the firearm. Id. at 399-400, 264 S.E.2d at 842.

[3] We note that the definition of a violent offense in § 16-1-60 includes boating
under the influence resulting in death, vessel operator’s failure to render
assistance resulting in death, failure to stop when signaled by a law
enforcement vehicle resulting in death, and felony driving under the influence.